Carbajal v. Keefer

51 F. Supp. 3d 1065, 88 Fed. R. Serv. 3d 1411, 2014 WL 2861756, 2014 U.S. Dist. LEXIS 86848
District Court, D. Colorado·Decided June 24, 2014·No. Civil Action No. 12-cv-03231-REB-KLM·Published·Cited by 9 cases

Opinion

ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO APPEAL

Blackburn, United States District Judge

The matter before me is Plaintiffs Motion for Leave To Appeal the Trial Court’s Order Overruling Objections to and Adopting Recommendation of United States District Court [sic] Magistrate Judge, and an Orde [sic] Directing the Clerk To Enter Judgment [#219],1 filed May 21, 2014.2 Although plaintiff purports to seek relief under Rule 58, what he essentially requests is the right to pursue an interlocutory appeal. Interlocutory appeals may be granted under Fed. R. Civ. P. 54(b) or, alternatively, under 28 U.S.C. § 1292(b). Under either provision, however, plaintiff is not entitled to relief. I therefore deny the motion.

Rule 54(b) provides that [w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

Compliance with the rule thus requires that I find both that the judgment as to which certification is sought is final “in the sense that it is an ultimate disposition of an individual claim entered in the course of a^ multiple claims action” and further that there exists no just reason to delay entry of judgment. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1464-65, 64 L.Ed.2d 1 (1980) (citation and internal quotation marks omitted). My discretion to grant or deny certification “is to be exercised ‘in the interest of sound judicial administration.’ ” Id., 100 S.Ct. at 1465 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297 (1956)).

In determining whether the judgment is final for purposes of Rule 54(b), [1068] “[factors the district court should consider are ‘whether the claims under review [are] separable from the others remaining to be adjudicated and whether the nature of the claims already determined [are] such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.’ ” Stock-man’s Water Co., LLC v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir.2005) (quoting Curtiss-Wright Corp., 100 S.Ct. at 1465 (second and third alterations in Stockman’s).

Pursuant to 28 U.S.C. § 1292(b),

[w]hen a district judge, in making in a civil action an order not otherwise ap-pealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order....

The terms of the statute admit of four criteria that must be satisfied before an issue may be certified for pretrial appeal: (1) the action must be a civil action; (2) the court must conclude that the order involves a controlling question of law; (3) there must be substantial ground for difference of opinion as to the resolution of that question; and (4) it must appear that an immediate appeal from the order may materially advance the ultimate termination of the litigation. In re Grand Jury Proceedings June 1991, 767 F.Supp. 222, 223 (D.Colo.1991). Although appeals under this section are exceedingly rare, they may be permitted where immediate appeal of a controlling issue will avoid protracted litigation. State of Utah By and Through Utah State Department of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994); McDonald v. Holder, 2010 WL 5387482 at *2 (N.D.Okla. Dec. 17, 2010). As under Rule 54(b), I have discretion in determining whether to certify an order for interlocutory appeal under the statute. See Swint v. Chambers County Commission, 514 U.S. 35, 47, 115 S.Ct. 1203, 1210, 131 L.Ed.2d 60 (1995); Etienne v. Wolverine Tube, Inc., 15 F.Supp.2d 1060, 1062 (D.Kan.1998).

Nothing in plaintiffs motion suggests that an interlocutory appeal is appropriate under either of these rubrics. Section 1292(b) is clearly inapplicable. Assuming arguendo that the first three elements of the statute could be satisfied, clearly this is not a case in which immediate appeal may materially advance termination of the litigation. Indeed, just the opposite — the relief plaintiff seeks on appeal would greatly expand the scope of this case. Thus, appeal under section 1292(b) is not available.

Nor has plaintiff demonstrated entitlement to relief under Rule 54(b). Plaintiff suggests that he is subjected to continuing “bad faith prosecutions” by unnamed former defendants against whom plaintiffs claims for injunctive relief were dismissed without prejudice. In general, an interlocutory appeal should not be granted where a claim has been dismissed without prejudice. See Jackson v. Volvo Trucks North America, Inc., 462 F.3d 1234, 1238 (10th Cir.2006); Mitchell v. Rocky Mountain Cancer Centers, LLP, 2008 WL 4649028 at *2 (D.Colo. Oct. 20, 2008). Although there is an exception to this rule “where the dismissal finally disposes of the case so that it is not subject to further proceedings in federal court,” effectively preventing the plaintiff from refiling the claim in federal court, Jackson, 462 F.3d at 1238, that exception is inapplicable [1069] here.3

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Carbajal v. Keefer, 51 F. Supp. 3d 1065, 88 Fed. R. Serv. 3d 1411, 2014 WL 2861756, 2014 U.S. Dist. LEXIS 86848 (D. Colo. 2014).

51 F. Supp. 3d 1065 (Carbajal v. Keefer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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